Black Lung Legislation

Journal of the Senate
State of West Virginia
Fifty-Ninth Legislature
1969
pp. 1299-1307

Mr. Brotherton, chairman of the Committee on the Judiciary, sponsor of the foregoing amendment, was
recognized by the Chair and spoke to the amendment, giving a full explanation of the proposed
amendment by the Committee on the Judiciary and a comparison of the provisions of the Engrossed
House Bill No. 1040 as passed by the House of Delegates and the Senate version if the proposed
amendment of the Committee on the Judiciary were adopted.

Thereafter,

Mr. Carrigan requested and obtained unanimous consent for insertion in the Journal of remarks made
by Mr. Brotherton, as chairman of the Committee on the Judiciary, concerning the Judiciary committee
amendment to Engrossed House Bill No. 1040 (amending workmen's compensation law to
include "black lung" disease). Mr. Brotherton's statement follows:

MR. BROTHERTON: "Mr. President, according to the Journal the Judiciary committee amendment is
pending, with other amendments which would amend the Judiciary committee amendment.

"Mr. President, in view of the fact that I am chairman of the Senate Judiciary committee and a great
deal has been said about the Senate Judiciary amendment, I would like at this time to try to explain in
some manner the reason for the Judiciary committee amendment to Engrossed House Bill No. 1040,
and to alleviate any feeling that the amendment was arbitrary or capricious but that it was based solely
upon medical testimony, upon evidence, and upon studies the Judiciary committee had before it when
these matters were discussed.

"To set every person's mind at rest, Mr. President, let me say in the beginning that every member of the
Judiciary committee was concerned with the health and welfare of the employee that works in industry
where there is a great amount of dust inhalation; every man on the committee was concerned about
mine safety; every man on the committee was concerned about dust reduction and control; and every
man on the committee was concerned about the health and the rehabilitation of that employee who got
pneumoconiosis. But the committee was made aware, Mr. President, of the fact that workmen's
compensation legislation deals with injury and disease suffered by an employee in a hazardous
occupation. When we talk of injury and disease, we talk of medical terms. The matters concerned with
the reduction of dust in the mines so there will not be explosions and miners killed and suffering from
pneumoconiosis are types of legislation that should be contained in other legislation before the
Department of Mines, before the Health Department, and, as evidenced by the President of the United
States, who, the first part of this week submitted to Congress his recommendations that mine safety
regulations and legislation be enacted on a federal basis to lower the dust content in the mine and to
provide for a rehabilitation of those miners who suffer from pneumoconiosis.

"The hearing brought evidence to West Virginia from abroad that in England when a miner suffers
pneumoconiosis, he is removed from the face of the mine where he has inhaled this large quantity of
dust and transferred to another job. Workmen's compensation legislation, no matter how changed, will
not help this man because there was no provision and can be no provision in workmen's compensation
legislation for his transfer from one place to another place to relieve the possibility of his acquiring
massive progressive pneumoconiosis after it has been ascertained that he had simple pneumoconiosis.

"It was the understanding of the committee that every miner wanted to work at his job, but he wanted
to work in a safe condition so that he did not suffer any ill effects therefrom; and that if he suffered ill
effects connected with his work, he should be compensated for those ill effects relating to the hazardous
occupation that he was undertaking.

"But the committee also considered the overall effect of pneumoconiosis legislation, Mr. President, in
that there was a strong possibility under the new definition of 'pneumoconiosis' that
if the miner would receive a 10 percent award from simple pneumoconiosis, he would then, in all
probability not be re-employed, not be allowed to go back in the mines because the employer or new
employer would not want to take on the burden of paying for the increased pneumoconiosis that he
might suffer for going back in the mine. So, with this understanding and with the understanding that there
was a new concept as to the meaning of 'pneumoconiosis', and with the hope that the miner would be
justly compensated for his injury but also be left with the possibility of earning a living for his family -
because on an award of 10 percent disability he would probably draw $2,000 and if he had any family
at all he could not go back in the mines if the employer did not want to take him back, should it be
ascertained that he had simple pneumoconiosis - it was, therefore, felt by the committee that there
should be an award for simple pneumoconiosis and allow the miner to return and earn his living that is
necessary to keep his family together. And if later on it should develop that he had massive progressive
fibrosis, then he would be compensated for this, this being a conglomeration of the nodules in the lung
which in all probability will lead to his eventual death.

"I discussed this matter with many of the miners who have come to me to be heard on this situation and
all of them have one thing in common - they want to be compensated for their loss. They don't want a
handout; they don't want a pension; they just want to be compensated for the losses suffered while in
the mines, when there is a cause or connection between the injury they suffer and their working
conditions.

"May I say this, Mr. President, that Dr. Wright, one of the most renowned physicians dealing with
respiratory ailments, has stated that 10 percent of all males over 30 years of age have demonstrable
obstructive airway disease. Now this is not in any way connected with pneumoconiosis. This means that
10 percent of everyone in this body, everybody in the United States 30 years old or over has
demonstrable obstructive airway disease. This comes with the type of society and environment in which
we live. We all agree that we all breathe dust; we all breathe chemical fumes; we all breathe impure air;
and from this we develop a demonstrable obstructive airway disease without any relation to the disease
of pneumoconiosis. With the House presumption in Engrossed House Bill No. 1040, it would be
presumed that this demonstrable obstructive airway disease is compensable as 'pneumoconiosis'
because of the presumption that having some pulmonary disability you have suffered disability while in
the mines. There is no symptomatic correlation between shortness of breath, or airway disease, and
pneumoconiosis. With this in mind, the committee went to work to draft legislation that you see as this
amendment.

"There has been some discussion about pressure. Let me say this, Mr. President, that no miner that has
come to talk to me could have been more courteous, more fair, or more understanding. He (the miner)
presented the position that he had been told about and the way he felt, and he listened with fairness and
understanding to me when I explained the position of the Judiciary committee to him. I do not believe
that in any manner the members of the Senate have been pressured, in the way that we understand
pressure, to pass this legislation. They have talked to us as every citizen in the state is entitled to talk to
his representative, fairly and understandingly. We may not agree, but we have the right to discuss the
matter and we have the right to disagree, because we live in the United States of America.

"May I say, Mr. President, it has been said here in the beginning that some groups wanted the
Pennsylvania presumption and some groups wanted another presumption. The Senate Judiciary
committee was not concerned with what anybody wanted. We were concerned with doing what we
thought was right and would compensate the miner if he were diseased or injured in connection with his
work. We weren't concerned with the cost. There have been some telegrams and some letters
expressing concern for the great cost to certain industries. We weren't, in the Senate Judiciary
committee, concerned with the cost of the disease diagnosable as 'compensable pneumoconiosis'. This
is evidenced by the fact that the bill was put in with a 45 percent award of the average weekly wage up
until 1970 and an increase of 50 percent of the average weekly wage from 1970 on. This was not
amended by the Senate Judiciary committee. It was left alone and there was no talk, no discussion in
the Judiciary committee concerning the paying for compensable pneumoconiosis.

"The committee, in the beginning, and in writing this legislation, had certain studies before it. One of
those studies I refer to, Mr. President, is the 'Final Report - Chest Disease Problems in Coal Miners'
of a conference held at University College, University of Maryland and reprinted with the permission of
the United States Department of Health, Education and Welfare. In summing up the coal workers'
pneumoconiosis conference by Dr. William Keith Morgan, it was stated in his report - a copy of which
all the Senate members had - that pneumoconiosis is defined as 'A diagnosable condition produced by
the inhalation of dust' - a diagnosable condition not based on presumption, Mr. President. Dr. Morgan
further said, 'It may be harmless and benign and not associated with symptoms or it may be
symptomatic, and as such, cause of respiratory disability . . . . [ellipses are in journal record] The
diagnosis of this condition in life can be made with reasonable certainty if there is a history of exposure
to dust and if there are characteristic radiological abnormalities present on a chest film.

"This study, along with the study of the Spindletop Research Center, was looked at by the members of
the committee. And may I say, Mr. President, that the list of doctors as outlined in the coal workers'
pneumoconiosis study included many eminent authorities on respiratory diseases. Two of those doctors
who spoke for the proponents when we had a joint hearing on this matter over in the House of
Delegates chamber some two or three weeks ago, Dr. Eugene P. Pendergrass and Dr. Donald L.
Rasmussen.

"Dr. Pendergrass was tendered the question: 'Do you consider that a diagnosis of coal workers'
pneumoconiosis may be made on physiological and clinical grounds in the absence of a radiological
assessment?' Dr. Pendergrass' answer to that is, categorically, 'No' - and this is in his own
handwriting, a copy of which he sent back to the Spindletop Institute of Research.

"Dr. Donald L. Rasmussen was asked the question, 'What are the various medically accepted ways for
determining the existence of coal worker's pneumoconiosis?' He answered, 'The only means of
establishing a medically proven diagnosis of coal workers' pneumoconiosis is the demonstration of
typical morphologic abnormalities in an individual with a know exposure to airborne coal dust. A
presumptive clinical diagnosis of coal workers' is usually dependent upon the history of exposure plus
X-ray findings consistent with a diagnosis of pneumoconiosis.'

"Further, Dr. Rasmussen was asked the question: 'Do you consider that a diagnosis of coal worker's
pneumoconiosis may be made on physiological and clinical grounds in the absence of radiological
assessment?' His answer was: 'I am not aware of a practicing chest physician who would make a
diagnosis (of any disease) on the basis of physiological and clinical grounds without an X-ray
examination of the chest.'

"The consensus of the opinion of 95 percent of the doctors who answered the inquiries and the
questions in this book - and the book was made available to all members of the committee - was that
some objective medical finding would have to be made rather than a presumptive finding that there is
pneumoconiosis.

"The Senate Judiciary committee did not stop with these two studies but in fact invited before it the
present West Virginia Workmen's Compensation Silicosis Board - men who, in the opinion of the
committee, had no axe to grind but were solely committed to making a medical determination of cases
set before them - one man having been on the silicosis board for 27 years, one man having been on the
silicosis board for 21 years, and one man having been on the silicosis board for 10 years.

"These three men were called together before the Senate Judiciary committee to discuss and answer
questions concerning pneumoconiosis. One of these three men had studies and worked with Dr. Goff's
Respiratory Board in Wales, had studies with the International Labor Organization on Respiratory
Diseases in Germany and in Italy and other countries of Europe. Based on this information, they gave us
knowledge concerning a diagnostic definition of pneumoconiosis. All three of these men are dedicated
physicians in the State of West Virginia, well trained for their work; one of them being a heart specialist,
another one being a thoracic surgeon. And I will have to confess, Mr. President, while I am on my feet,
that I may be somewhat prejudiced as to the statements made by two of these doctors. It is because of
their medical knowledge and with the grace of God that I stand here today, having had a malignancy
discovered and worked upon by two of these doctors who make up the silicosis medical board. This
was not made known to the committee and they did not take that into consideration in arriving at the
Senate version of Engrossed House Bill No. 1040.

"Based on this study, the Senate adopted the conception of the umbrella approach of occupational
pneumoconiosis. When we first came to the Legislature we heard the term 'mine workers'
pneumoconiosis'. But it was felt that dust inhalation which we saw as an injury or disease to the lung
should be compensable to any worker in an industry where this injury or disease resulted. So the term
'mine workers' pneumoconiosis' was changed to 'occupational pneumoconiosis'.

"In comparing the two bills, Mr. President, let me point out this: From the period of an employee's time
of employment, from 2 to 10 years, there was no difference between the House bill and the Senate
amendment. The House bill and the Senate amendment would still require a diagnostic objective
evidenced as pneumoconiosis. The presumption of pneumoconiosis only comes into effect after the
miner has worked 10 years in the mines, but from 2 to 10 years, he must have some diagnostic finding
as to his pneumoconiosis.

"It was the intent of the Senate Judiciary committee not to limit this diagnosis to X-ray evidence only. It
was the felling of the silicosis board that very rapidly we are developing new tests, new theories, and
new means of ascertaining what the disease 'pneumoconiosis' is. As we know, medical science is
making rapid progress in all fields, and as of now great sums of money are being expended at West
Virginia University and the Appalachian Research Center for studies on the problem of
pneumoconiosis. Studies are being held in the medical center at the University of Kentucky and other
areas where pneumoconiosis is a problem. The silicosis board and the committee did not want to tie the
diagnosis of pneumoconiosis to X-ray along, but in fact wanted it to be based on any medical evidence
that would be consistent with the diagnosis of pneumoconiosis based on occupational and hazardous
employment.

"Mr. President, the House bill does not have the so-called 'Pennsylvania presumption' which, in fact, is
not really important; but the Senate version does have the Pennsylvania presumption, which would
mean that after you have worked two years and before your have worked ten years and there was a
diagnosis of pneumoconiosis, you would not have to prove that you worked in a hazardous occupation;
you would not have to prove that you inhaled sufficient quantities of dust which would have caused the
diagnosis of pneumoconiosis. This is written into the Senate amendment and would cover the period
from two to ten years that the House bill speaks of.

"Now we come to the question of reopening. The House bill would allow an employee who has the
presumption of pneumoconiosis, after he has been awarded a permanent-partial award, to reopen his
case if he reopened it within one year after his last payment. Let me explain this, Mr. President.
Suppose that a worker had a diagnosis of 'pneumoconiosis' and was to have a 10 percent disability.
Under the law then, I multiply 10 by 4 and get the number of weeks. He would draw workmen's
compensation for 40 weeks. After that 40-week period if he did not have an aggravation within one
year in which he could reopen his claim, he would be forever barred from opening a claim no matter
how serious or how aggravated the pneumoconiosis got after that time period. It would be that upon the
finding of simple pneumoconiosis with any amount of disability, that after the last payment, after a year,
if he did not reopen he would be barred and still could die of massive progressive pneumoconiosis
without being compensated for it. The Senate amendment would change this, Mr. President. The
Senate bill would say that once you had an award of pneumoconiosis you could not reopen it. You
could go back in the mines, but if it were shown at some later date that you had massive progressive
fibrosis, no statute of limitations would apply and you would be able to be compensated for that
massive progressive fibrosis which would not be allowed if the statute of limitations had run under the
House bill.

"The Senate bill differs from the House bill in that it would allow greater benefits for those people who
suffer a compensable disease or injury. The Senate bill, as I have stated previously, would allow a 45
percent average weekly wage up until June 1, 1970, and after that 50 percent of average weekly wage.
The other benefits paid to the widow are increased above the House bill. The benefits paid to the
children and others are the same as the House bill.

"Based on this, Mr. President, it was the consensus - and I don't say this was the unanimous consensus
- that medical men could make a true diagnosis of pneumoconiosis based on an occupation in
hazardous employment, and it would not be necessary to rely upon a presumption of facts that may or
may not exist. And with that understanding and with the studies, the committee reported to the floor of
this Senate the Senate amendment to Engrossed House Bill No. 1040. that is my explanation for the
committee and for the committee members' reasoning, rationale, and judgment in reporting this
amendment. Thank you, Mr. President."